News Feature

Justice for Native Farmers

Class action settlement to benefit New Mexicans

By Carolyn Carlson

George and Marilyn Keepseagle at their ranch on the Standing Rock Sioux reservation in North Dakota

Courtesy of Cohen, Milstein, Sellers and Toll law firm

After a 13-year court battle, Native American farmers and ranchers who were denied federal farm loans will get long-awaited compensation. The U.S. District Court approved the Keepseagle v. Vilsack class action settlement of $760 million in April. Lawyers sought out potential claimants for that money—including people in New Mexico—up until Tuesday, Dec. 27.

Standing Rock Sioux tribal members George and Marilyn Keepseagle of North Dakota, along with people from other tribes, filed the discrimination lawsuit in late 1999 against the U.S. Department of Agriculture. In a statement released on YouTube, the Keepseagles said they were motivated by the next generation of Native Americans. “All the young people are going to have equal opportunities and not have to go through the things we went through,” said Marilyn. George said they decided to do something after years of injustice: Anglo farmers and ranchers on neighboring properties received USDA loans or other federal funding while comparable Native American applications were denied.

The Court Battle

U.S. District Judge Emmet Sullivan approved the lawsuit as a class. That means the settlement money can go to Native American farmers and ranchers who applied for USDA funds between Jan. 1, 1981, and Nov. 24, 1999, and filed a discrimination complaint. For more than a decade, the massive case was in litigation.

According to court records, more than 2 million pages of USDA documents were acquired for the case. The documents showed that Native Americans received less funding than they were entitled to; that rules permitted local decision-makers to show preferential treatment to friends and family; and that employees referred to Native Americans in demeaning ways. Court records indicate widespread and harsh prejudice by the Agriculture Department over several decades.

It is estimated that Native American farmers lost out on more than $1 billion. Less quantifiable damages included the destruction of families and the loss of farming traditions—a way of life for many Native Americans.

New Mexico

At a snowy Wednesday, Dec. 21 open house in Gallup, a few dozen people waited to speak with two attorneys who were signing up claimants. It was just days before the deadline.

Teams of lawyers were sent out to spread the word about the process. Details are protected under attorney-client privilege, said Christine Webber of the Cohen, Milstein, Sellers and Toll law firm that was handling the settlement claims. “Arizona and New Mexico were expected to be one of the biggest areas for claims because of the number of tribes located in the two states.”

About 300 people in New Mexico filed claims, as did 380 from Arizona. In total, about 5,100 were filed nationally, according to preliminary reports, says Webber.

Several people attending the Gallup meeting declined to be interviewed, saying they did not want to jeopardize their chances by being in the press.

Anita Tsinnajinnie, a translator, was on hand. “Communication issues are complicating factors in gathering claims,” she said, citing the number of tribes and languages as part of the challenge. Gathering basic legal documents to prove Native American heritage was also a daunting task for many on rural reservations, she said. Individual interviews were conducted with a translator, she added, and could be time consuming.

A 2009 study by the Center of Southwest Culture stresses that the largest threat to Native American farming in New Mexico is waning interest from tribal members: If the younger generation loses regard for ancient farming traditions, they will be lost.

Gambling enterprises are also consuming parcels of Native American land. More than half of New Mexico’s pueblos run casinos, according to the study, and so do Apache tribes and the Navajo Nation. “Tribes are diverting water rights into nonagricultural uses,” the study states, “especially golf courses for resort developments.”

Amends

The settlement offers two tracks: one for those with documentation of discrimination and one for those without.

The majority of claims were expected to be from people who do not have written evidence but who made sworn oral statements. A panel of federal judges will rule based on the testimony and can decide to award $50,000 to each claimant. This is allowed because the case goes back 30 years, and most people don’t keep documents that long.

The other track is for claimants who have written evidence that they were denied a farm loan. They are eligible for $250,000. Claims could also be filed on behalf of dead or incapacitated individuals. Three of the class representatives died during the litigation process.

Successful claimants will be notified in the summer of 2012. Any leftover settlement money will be funneled into nonprofit Native American farming and ranching organizations.

The government admitted no wrongdoing but agreed to some policy changes. Joe Sellers, lead counsel for the plaintiffs, said the settlement was long in coming and good because it includes measures for protecting Native Americans from discrimination. “It will lead to significant changes in the farm loan program for future generations,” he said. Some of those changes include setting up a Council for Native American Farming and Ranching, more regional outreach locations, easier application processes, and setting up an ombudsman or liaison between the USDA and federally recognized tribes.

For Janet Thomas, national logistics coordinator, the case is personal.

Like the Keepseagles, she’s a member of the Standing Rock Sioux tribe. Her father Basil Alkire was one of the original class representatives. He died in 2007 before the settlement was reached. “This is such an amazing victory,” Thomas said. She wished her father could have seen the lawsuit’s resolution, she added. “He would tell me: Don’t let them forget.”

Other Lawsuits

This isn’t the only farming and ranching discrimination suit based on loan denials that paid out billions.

• In October 2011, African-American farmers settled their case against the Agriculture Department for $1.2 billion.

• In March 2011, women and Hispanic farmers settled their lawsuit for $1.3 billion.

Even bigger money:

• In October 2009, a landmark agreement was reached in another suit brought on behalf of Native Americans. Cobell v. Salazar reaped the largest settlement ever from the federal government: $3.4 billion for fraudulent accounting of billions in trust and royalty money.